This section is in continuity with the terms/representation demarcation. Provided that a representation is now simply a term (with the implementation of the CRA 2015, s. 50, as mentioned above), the remedies that a misrepresentation offers are excluded from the consumer’s rights. This is not advantageous for the consumer, as it is easier to get out of a contract for a misrepresentation than it is for a breach of contract. The former permits rescission of the contract for any misrepresentation regardless of its significance, although rescission can be rejected by the court by the way of equitable considerations, whereas the latter requires the term to be a condition, i.e., a serious breach.
Moreover, standard for damages may also be distinct between a term and a representation. A remedy for a breach of term is forward looking, meaning that it seeks to put the individual in a position they would have been in, had the contract been performed. A remedy for a misrepresentation is backward looking, meaning that it seeks to put the individual in a position they would have been in had they not entered into the contract. By translating representation into terms, the consumer is seemingly denied the choice of remedy that is most favourable to them.
Remedies for supply of goods contracts have also been revised, in addition to remedies for service contract representation. They are contained in ss. 19-24 of the CRA 2015 and have been discussed in Part 1. The problem here is to do with damages. The Act states that other remedies can be pursued, including damages, however it does not give guidance or instructions on how to calculate those damages. Sections 51-53 of the SoGA are not applicable to the CRA 2015, Chapter 2 Part 1, as expressly stated in the act, which deals with the supply of goods contract. Thus, one would need to calculate damages following the common law rules from Hadley v Baxendale. The same issue can be identified relating to specific performance, where specific performance is authorised, but it remains for the most part discretionary, as in the landmark case of Beswick v Beswick.
Uncertainty around the doctrine of ‘repeat performance’
Concerning service contracts, section 55 of the CRA 2015 entitles consumers to a remedy for repeat performance. This provision has caused numerous complications and struggles as to the definition of the doctrine of repeat performance and the differentiation between repeat performance and specific performance, which is also accessible through section 42(7)(c) of the Act.
Paragraph 263 of the Explanatory Notes stipulates that, under the doctrine of repeat performance, “if the service does not conform to the contract, the consumer is entitled to require that the service is properly performed, through it (or part of it) being done again.” It further provides that repeat performance is, in some cases, in addition to specific performance. Therefore, the service complained of ought to have been carried out previously, in order for repeat performance to be relied upon by the consumer. Any other way, repeat performance will not be available considering that it is yet to have been done. In such event, where the performance demanded by the consumer has still not been done, he or she will have to rely on specific performance.
It appears that the Act has failed once again in clarifying and simplifying consumer protection law as the reason behind why such a distinction has been made remains unclear and seems unnecessary and complex, the precise thing the Act was trying to rectify. The rationale for such complication is elucidated further in paragraph 273 of the Explanatory Notes. Repeat performance is implemented as an additional remedy for consumers for the reason that specific performance is an equitable remedy and not a right, and will only be offered at the court’s discretion. Given that, it is still unsettled why specific performance has not been made simpler and straightforward just by catching both specific and repeat performance in section 55 as opposed to some intricate and rather arbitrary distinction.